The Ivory Tower Prisoner’s Dilemma

Why law journals are useless, and why we can’t do without them

“Are [scholarly law] journals even useful nowadays?” Francis Lévesque asked this question in response to a Twitter discussion about the ideological problems that plague the system of peer review, which screens articles published in such journals pretty much everywhere except in the United States. Since I already complained about these problems in a recent post, I might as well reproduce a slightly expanded version of my answer. In short, I think that journals are useless, but they remain, and probably will remain, indispensable due to academia’s collective action problem.

Why are journals fundamentally useless? Because nobody actually reads them. I don’t mean that people don’t read what is in the journals. Well, often, they don’t. But sometimes they do. And not just academics, though admittedly that’s often the audience for which scholars write. At least some articles attract the attention of practising lawyers and of judges. But here’s the thing. People read articles, not journals. Journals as physical or electronic objects, i.e. assemblages of several articles that share a masthead and a typography and not much besides, appearing several time a year, are obsolete and unnecessary.

The reason for this is, of course, that you don’t need a journal, whether in physical or electronic form, to find articles, which, to repeat, is what people (sometimes) want to read. Articles are mostly either discovered by word of mouth ― again, literal or electronic (say posts, for example on this blog, that mention new articles) or found through databases such as HeinOnline, CanLII, or SSRN. Perhaps a few journals ― think, the Harvard Law Review ― are prestigious enough to command attention in their own right. Perhaps some specialized journals are of interest to people in particular areas of research or practice. Thematic issues of particular journals might also be interesting as collections of articles. But the ordinary, generalist journals? Nope. If I read an interesting piece that was published by, say, the McGill Law Journal, I’m not going to even bother looking what else was in the same issue.

But while journals as platforms for scholarship are largely useless, journals as institutions are not. They provide bundles of services some of which may be useful, and one of which makes them indispensable. The maybe-useful services are the ones you are probably thinking of. In particular, journals review and select manuscripts (what a quaint word for things that haven’t been written by hand this past century!), and edit the ones they choose, and journals ensure that published articles are transmitted to databases where they can, hopefully, be found. The indispensable service is one you might also be thinking of but wouldn’t want to admit to be: signalling.

The maybe-useful stuff should be really useful, but it isn’t always, as it turns out. The review and selection process is sometimes ― and perhaps more commonly than I would have thought ― tainted by ideological gate-keeping or simple turf wars or even cronyism and rank snobbery. In the United States, the problems are a bit different, since it is student editors who are fully in control or editorial decisions, without input from peer reviewers, but things are not necessarily better overall. The editing can be hit-or-miss ― sometimes useful, but sometimes the editors try to impose arbitrary ideas of what good writing should look like on authors who actually have more sense and experience. Even the transmission-to-databases function, which is genuinely important ― it’s one massive advantage journals have over blogs, for which no equivalent of the journal databases exists ― works better with some journals than with others. North American student-run journals are widely available; the ones owned by publishing companies such as the University of Toronto Press, the Oxford University Press, SAGE, etc, are sometimes only available through their proprietary databases, which makes the difficult to find.

Signaling is another matter though. Journals provide it reliably because they don’t actually need to do anything to provide it. Their reputation just exists ― in the case of journals associated with particular law schools, primarily as a result of the school’s reputation. But it becomes a self-fulfilling prophecy. Publishing in a particular journal, or category of journals, marks you as a successful scholar, so people who want to be known as successful publish in these journals, which helps preserve their reputation, and so on and on.

Yet despite being the result of little more than bootstrapping, this signalling function is very important to academics. Your disciplinary peers ― those who write in the same area as you ― don’t need it. They can assess the value of your scholarship directly, by reading it. But others can’t do that well, because they lack time and interest, and because they just don’t know enough about your particular area. The latter problem is getting ever worse, as legal scholarship becomes more and more specialized. And these others matter in a scholar’s career: they are the members of hiring and promotion committees, and perhaps those who assess proposals for funding agencies (though I lack experience to speak to that). Not being able to assess a scholar’s output directly, they look for informational shortcuts and proxies. Journal prestige is the most obvious one.

As a result, unless you’ve achieved everything you wanted in your career and have no aspirations for further promotions or going to another school, or unless you can signal your productivity and quality through books alone (and I don’t think many legal academics can do that), you can’t afford not to chase the signaling that journals provide. Even if you believe that the signal is actual mostly noise, even if you think it means little, you can’t ignore it. You are competing against people who might not share these views and get all the signal they can, and the judges of that competition might actually believe that the signal is meaningful.

The result is a classic prisoner’s dilemma. It’s in your best interest to act in a way you know is sub-optimal for the scholarly community. You know that if you don’t, you’ll be, to use a technical term, screwed. One might devise alternative systems for publication. They could well provide the useful services that journals may or may not be providing now. They might even try to provide their own signaling. But unless almost everyone buys into the same alternative system more or less at once, you’ll have to be mad to go for one in particular. What if it doesn’t take off? Then your efforts to establish your reputation have been wasted, and your career is compromised.

So we are stuck. Perhaps some senior scholars can take the lead and establish a new system. Perhaps then those of us who still have careers to make can follow them. But I’m not optimistic. That said, if you think I’m wrong, and especially if you have concrete ideas, I’d love to hear from you. It would be nice to be wrong about this. Mr. Lévesque thinks I am, but I’m afraid that his technological optimism is no match for my collective-action pessimism.

Horrocks: What Happens to Agraira?

One of the more nerdy judicial review questions is the standard of review applicable from an appellate court to a lower court in judicial review cases. That is, how do appellate courts deal with lower court decisions that, either through a right of appeal or by application for judicial review, review administrative decisions?

The current orthodox position is outlined in Agraira. There, the Supreme Court held that when an appellate court reviews a lower court decision disposing of a judicial review application, the appellate court “steps into the shoes” of the lower court (Agraira, at para 46). In effect, as Stratas JA points out in Sharif, at para 5 this turns out to be pure de novo review: the appellate court reconducts the standard of review analysis, in both selection of the relevant standard of review and its application.

Post-Vavilov, Stratas JA questions how long Agraira-review will last (see pg 60 of his masterful work here). Luckily, we won’t have to wait too long for the answer to this question. The Supreme Court recently granted leave in Horrocks, a Manitoba case that raises this question directly. The Supreme Court, in describing the main question in the case, says the following: “What is appropriate standard of appellate review, as between levels of court sitting in review of decision of administrative tribunal?”

This is an open question. In this post, I assess some of the options for dealing with this issue. I first describe the holding of the Manitoba Court of Appeal in Horrocks, then I outline the potential options that are in front of the Court in assessing this question. I ultimately conclude that, on balance, there are good reasons to favour the application of the Housen v Nikolaisen standard of review across the board when an appellate court reviews a lower court’s review of an administrative decision. Put differently, we should rid ourselves of Agraira.

**

Horrocks involves, in addition to the standard of review issue, a tricky issue of “jurisdictional lines” between two or more tribunals. While I do not address this issue in this post, some description of the basic conundrum is necessary for context.

Horrocks was a health care aide at a personal care home operated by the Northern Regional Health Authority in Manitoba (NRHA). NRHA is a party to a collective agreement with CUPE. Horrocks, during work hours, was observed as intoxicated. After refusing to sign a document that would have forced Horrocks to abstain from alcohol completely, her employment was terminated. CUPE grieved under the collective agreement. Prior to a scheduled arbitration, another document was negotiated between the parties, which again asked Horrocks to abstain from alcohol, and contained other revisions, including that any breach of the document would constituted just cause for termination, and that Horrocks could challenge any employment decision by NRHA under the collective agreement’s grievance and arbitration procedures.

Horrocks was, again, found to be intoxicated outside work. NRHA again terminated her employment. Horrocks then filed a discrimination claim with the Manitoba Human Rights Commission (MHRC). The core question was whether the MHRC had jurisdiction over the dispute, or whether the collective bargaining/arbitration provisions governed. At the Manitoba Court of Queen’s Bench, the court found that the MHRC lacked jurisdiction. The Manitoba Court of Appeal allowed the appeal, concluding, interalia, that there was a “modest” place for human rights adjudication; and so the lower court judged erred in overturning the MHRC decision that there was jurisdiction.

In analyzing the issue, the MBCA also commented on standard of review. The Court held that “both the identification and the application of the appropriate standard of review by a superior court judge conducting a judicial review is a question of law under the standard of review framework as set out in Housen [v Nikolaisen]” (Horrocks, MBCA at para 47). Therefore, the Court purported to apply the framework set out in Housen for appellate review (see Horrocks MBCA at para 38), meaning correctness review on any extricable legal questions. However, the Court, relying on Stewart, also said that the basic question on judicial review was whether “there is a principled reason to afforded deference here…” (Stewart, at para 19; Horrocks MBCA at para 49). The Court concluded that there was no such reason, because:

If one returns to the basic question discussed in Stewart (see para 19) as to whether there is a principled reason to afford deference here, I am satisfied that there is not. The record before the reviewing judge was the same that was before the Chief Adjudicator. He was not required to make any original findings of fact or exercises of discretion. Additionally, there are no limitations on the Commission’s right of appeal of the reviewing judge’s decision pursuant to section 89 of The Court of Queen’s Bench Act, CCSM c C280, such as a requirement that the decision being appealed must have wider significance beyond the parties such that leave to appeal must first be obtained. Taken together, these circumstances make it difficult to justify, on a principled basis, that a margin of appreciation should be afforded to the reviewing judge’s decision when he was not required by Dunsmuir (at
para 61) to afford deference to the decision of the Chief Adjudicator on the same issue (Horrocks MBCA at para 49).

Seemingly on the basis of Stewart, the Court therefore concluded that the administrative decision must be reviewed on a correctness standard, in both application and selection of the standard of review.

**

The question: what should the Court do with Agraira in Horrocks?

One option might be the reliance on Stewart as a comprehensive statement of the relationship between appellate courts and lower courts on judicial review. But I do not read Stewart as the MBCA does. That is, I do not see Stewart standing for a broad-based approach to the relationship between appellate courts and lower courts. But on principle, a standard phrased like the one in Stewart is too broad to be of much use on a comprehensive basis. It raises the prospect of standard-less doctrine that does not help reviewing judges to know the proper basis of intervention.

More seriously, there are two other basic approaches that are operating in tandem, to my mind. The first, the Agraira approach, views both the selection and application of the standard of review as questions of law. A lower court choosing and applying a standard of review, then, is owed no deference by an appellate court, even on questions of mixed fact and law or fact. Again, as noted above, this approach results in basically de novo review, a “re-do” on the merits by the appellate court, with the focus on the administrative decision.

This approach has its benefits and drawbacks. In principle, it is aligned with the focus of judicial review: the administrative decision. It ensures that administrative decisions (and errors) are not sheltered by deference doctrine applied by the appellate court. But there is a price to pay for fidelity to principle: as Stratas JA notes in Sharif, at para 5, it is an open question whether this “re-do” is consistent with principles of judicial economy and access to justice, heralded by cases like Hryniak v Maulden.

The second approach is to adopt Housen v Nikolaisen. That is, the lower court decision would be viewed as a pure appeal, notwithstanding the fact that it reviews an administrative decision. This means that, while selecting the relevant standard of review will be a question of law, there will be room for some deference on a palpable and overriding error standard on the application of the standard of review, and the law, to the facts (see, for nuance on this point, John Evans, “The Role of Appellate Courts in Administrative Law” (2007) 20 Can J Admin L & Prac”). A good example of this approach is contained in Hupacasath. There, Stratas JA noted that while he was applying the Agraira standard, that approach does not allow for the substitution of factual (or mixed fact and law) findings made by a lower court (Hupacasath, at para 75). Stratas JA goes on to say:

In my view, as is the case in all areas of appellate review, absent some extricable legal principle, we are to defer to findings that are heavily suffused by the first instance court’s appreciation of the evidence, not second-guess them. Only palpable and overriding error can vitiate such findings. In the context of the existence of Aboriginal title, the Supreme Court held to similar effect in Tsilhqot’in Nation, supra at paragraph 52 (Hupacasath, at para 76; see also Long Plain First Nation, at para 86.

This approach, of course, solves some of the problem of “re-doing” the standard of review analysis that characterizes the other approach. And, at least nominally, it ensures that the selection of the relevant standard of review remains a question of law that is reviewable on a correctness standard under Housen. But it leaves the door open to deference on findings “heavily suffused by the first instance court’s appreciation of the evidence.”

The main difference between approaches, then, is in the application stage, where Housen would not counsel a pure de novo review. People will different priors will favour one approach over another, but a complicating factor in the choice is the decision in Vavilov. While there is much in Vavilov that bears on this question, the main distinction that affects the choice between approaches is the strong distinction now drawn between cases going up to a higher court on a statutory right of appeal and cases proceeding by an application for judicial review. This distinction is driven, in the Vavilov Court’s mind, by an expression of Parliament: “…legislative intent can only be given effect in this framework if statutory appeal mechanisms, as clear signals of legislative intent with respect to the applicable standard of review, are given effect through the application of appellate standards by reviewing courts” (Vavilov, at para 49). So, on this account, there is a distinct difference when Parliament legislates a right of appeal—in effect, it legislates the appellate standards of review (see Vavilov, at para 36).

This suggests that there might be a reason to favour one standard of review framework over another, depending on the context. However, in my view, there are reasons internal and external to Vavilov to favour the Housen standard of review as a comprehensive standard for appellate review.

1) The appellate standard can no longer be Agraira because of reasons internal to Vavilov. This is because of Vavilov‘s holding on statutory rights of appeal. Now, an administrative decision taken to a court via a statutory right of appeal invites the application of the Housen standard of review (Vavilov, at paras 36 et seq). This, in other words, is a legislative signal that courts should treat the lower administrative decision as a decision from which to be appealed. There is no principled reason to differ the approach when the lower court decision is subsequently reviewed. The relationship between the appeal court and the lower court is similarly governed by statute; and the fact that the first instance decision-maker is an administrative decision-maker does not change the statutory relationship going “all the way up” to the appeal court. Agraira, then, is inconsistent with Vavilov on this score.

2) When the case involves an application for judicial review, the question is trickier. Vavilov does not speak directly to the issue. We now have the choice between Agraira and Housen presented directly. Based on reasons external to Vavilov, in my view, there is good reason to ditch Agraira and move to Housen for these cases, whether they involve a reasonableness or correctness standard on pure questions of law. That is because, when viewing the decision of a lower court that deals with an administrative decision, the appellate court’s role is not to directly review the administrative decision. In the hierarchy of courts, the appellate court role is to correct errors of lower courts; it is not to re-review the merits of administrative action. That is, primarily, the task of the superior courts and courts of first instance with judicial review jurisdiction. Based on this overriding first principle, the Agraira rule had three main flaws:

a) In principle, it corrupted the relationship between appellate courts, superior courts, and administrative decision-makers. Appellate courts do not review administrative decisions at first instance; they review decisions of lower courts as a matter of appeal. The appellate standards should, therefore, apply.

b) Whether the relevant standard is reasonableness or correctness, Agraira saps any deference to a lower court’s appreciation of the facts and evidence from the analysis. While the selection of the standard of review is a question of law to be decided by the court (see Monsanto, at para 6), its application to the facts may involve mixed questions of fact and law or assessment of evidence. There are good functional reasons to favour a first instance court’s appreciation of these issues. Agraira, for no good reason, did not account for this issue of first instance courts.

c) As Peter Hogg noted, there is no good reason to favour review of any kind, given that review necessarily involves some duplication of effort. Sometimes, review is a legal necessity, and we bite the bullet on duplication (ie) judicial review in the first instance is a constitutional necessity, and a legal good. But there is no principled reason to favour duplication of effort by an appellate court that did not get a first-hand glimpse of the record. There is no constitutional or legal good served by this sort of review that would vitiate these concerns.

A comprehensive standard for appellate review, then, emerges: it is the Housen v Nikolaisen standard. Adopting that standard in all instances of appellate review of a judicial review decision has two added benefits. First, it creates a comprehensive standard across judicial review contexts for appellate review. Whether the case involves a statutory right of appeal or an application for judicial review, an appellate court’s posture remains the same. While there are different reasons to favour the Housen standard in rights of appeal versus judicial reviews, the bottom line is the same: the posture of the appellate court is focused on reviewing potential errors in a lower court decision. The appellate court, at a basic level, is not a court of original judicial review jurisdiction, and was always a mistake to transform appellate review into first-instance judicial review.

But secondly, on a practical level, appellate courts are familiar and comfortable with Housen review. We now have extensive guidance on how to apply Housen review, including on the tricky issue of what constitutes “palpable and overriding error” (see South Yukon per Stratas JA, at para 46; Mahjoub per Stratas JA at para 61 et seq). There is a practical benefit that supports the in-principle reasons for favouring Housen review on these matters.

Overall, while this issue might appear to be a niche issue for administrative law lawyers, it is actually a fundamental issue. It goes to the relationship between the judiciary and the administrative state, an issue that should captivate all public lawyers. Hopefully, Horrocks helps to clear up some of the confusion that characterizes the current status of Agraira, on this front.

On the Rule of Law, Blockades, and Indigenous Self-Government

Recently, Canadians have been captivated by a set of protests occurring both in British Columbia and Ontario in relation to the Coastal GasLink pipeline. The pipeline is a $6B dollar, 670 km project which runs across Northern British Columbia. In British Columbia, the hereditary chiefs of the Wet’suwet’en lead blockades across the pipeline path, even in the face of injunctions issued against the blockades. On the other side of the country, in Ontario, a blockade led by members of the Mohawk First Nation has brought trains and other travel to a standstill, causing supply shortages in some areas. New protests and blockades pop up almost daily across the country. An injunction was also issued in respect of a blockade in the Toronto/Vaughn area, which was immediately burned by protestors in the area.

In all of this, many have called on police to enforce the various injunctions, because of the principle of the Rule of Law. The Rule of Law, so goes this argument, requires an injunction duly issued to be enforced. Still others rebuke the reliance on the Rule of Law, positing that (1) the Canadian Rule of Law, as presently understood, encompasses claims of Indigenous rights and title and (2) the Canadian Rule of Law does not speak to Indigenous systems of law, separate and apart from colonial law. As a result, in the debates, it is sometimes unclear whose Rule of Law we are talking about, and whether one particular application of a particular rule of law would lead to different results.

While it does matter in what sense we are using the term “the Rule of Law,” I write today to draw attention to two aspects of this dispute that I believe can exist in a complementary way. First, it is clear that on any understanding of the Rule of Law, a system of laws requires courts whose orders are respected. This is true even if one does not view the Rule of Law as the rule of courts. But additionally, what is required, as Dicey said, is a “spirit of legality” which should characterize the relationship between individuals and courts. On this account, the blockades in both Ontario and BC should be shut down, because they fail to respect valid court orders that are contributing to a public order. Canada’s Rule of Law as it is can support no other result.

But second, that cannot, and should not, be the end of the matter. Indeed, the blockades are showing why the current framework of Aboriginal rights vis-à-vis the Canadian state is so lacking. The Rule of Law is not only a fundamental postulate of our law, but it is also an aspirational ideal. There may be ways in which our constitutional order can move towards the ideal of the Rule of Law. On this front, it may be the case that the Rule of Law as currently understood in Canada is not applicable to Indigenous peoples and their systems of government. In other words, we may require an approach which recognizes distinctive Indigenous self-government, as a constitutional matter.  I have made this argument before, but wish to renew it here: Canada’s Constitution can and should recognize distinctive Indigenous self-government.

I write this with the full knowledge that I am not an Indigenous person. And also, I know nothing of the particular Indigenous law that applies in this situation. I am merely intervening in the debate to provide some clarity around what the “rule of law” might mean in this context.

***

There are different ways we can understand the Rule of Law. Each of these three understandings set out above are being used interchangeably in the debate over whether the blockades are proper, on one hand, or legal on another hand.

The first understanding of the Rule of Law, the “thin” understanding, largely associates the Rule of Law with the rule of courts. That is, on this account, a court injunction duly issued should be respected. And in this case, there have been injunctions. The British Columbia Supreme Court issued an injunction in late 2018, which was later expanded in 2019 to include emerging blockades.  Further, under this heading of the Rule of Law, a court in Ontario issued a valid injunction against blockades in Ontario on Saturday, February 15.

It goes without saying that the Rule of Law might not exhaustively mean the rule of courts, but that courts are still required in a system of the Rule of Law. This is because there must be some tribunal that can handle competing claims, especially in the context of property. Even if one accepts that Indigenous peoples have their own system of law operating within Canada, courts will be required to handle conflict of laws or jurisdictional contests. The ordinary courts, as Dicey called them, are central to an ordered society in which people can plan their affairs. If that is the case, the law should be respected, as interpreted by courts.

The Supreme Court of Canada has largely accepted this notion of order as central to a society governed by law. In the Quebec Secession Reference, the Supreme Court noted that the “rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs” (Quebec Secession Reference, at para 70). What is required is an “actual order of positive laws which preserves and embodies the more general principle of normative order” (Manitoba Language Reference, at 749). As an analogue to this general principle of normative order, there needs to be arbiters of the law in order to ensure that state action is not arbitrary in nature, itself an aspect of the Rule of Law (see Quebec Secession Reference, at para 70). Courts are the typical arbiters—the regulators, so to speak—of the relationship between individual and state. In order for the normative order to be upheld, then, a respect for courts are required.

This is true even if one takes a more substantive or “thick” conception of the Rule of Law. If one accepts, as some do, that the Rule of Law can encompass substantive policy aims like the promotion of human rights, one still requires the ordinary courts to recognize these rights as a matter of judicial interpretation.  As such, the thick conception of the Rule of Law is parasitic on the thin conception. And all require that the judiciary be respected, and that court orders be followed. This does not bode well for the propriety of the blockades.

But one might take the argument based on the Rule of Law further, by arguing that the Canadian Rule of Law includes Indigenous rights recognized under law. One might make the argument that the Wet’suwet’en have existing Indigenous title to the land on which the Coastal GasLink pipeline will be built. Indeed, in Delgamuukw, the Wet’suwet’en were at the centre of the controversy. There, the Supreme Court outlined its approach to handling claims based on Indigenous title. What it made clear was that Indigenous title was a sui generis sort of right, arising before the assertion of British sovereignty (Delgamuukw, at para 114). However, because of a technicality in the pleadings, the Wet’suwet’en were unable to receive a declaration that they held Indigenous title in the land (Delgamuukw, at para 76) . As such, while the Wet’suwet’en may have a valid claim, it has yet to be proven, and can only be accommodated within the context of the duty to consult, a sort of antecedent framework that preserves Indigenous claims that have yet to be proven (see Tsilqho’tin, at para 2).

While there are some questions in this case about who the proper “consultees” were, the bottom line is that Wet’suewet’en title has never been proven over the lands in question. And in the context of a Canadian Rule of Law argument based on Aboriginal title, proof is the centrepiece (see the test for demonstrating Indigenous title, in Delgamuukw at para 143). A blockade relying on these rights must respect their fundamentally judicial nature, in terms of Canadian law: they are recognized by courts, even if they predate the assertion of British sovereignty. One using an argument based on Aboriginal rights recognized under Canadian law, then, cannot justify the blockades on this ground.

***

Thus far, I have reviewed the Canadian-centric way of understanding the Rule of Law. Under these two conceptions, the blockades should come down. But to my mind, this point is insufficient and incomplete.  That is because the Canadian version of the Rule of Law may not be cognizable to Indigenous peoples. Indeed, the blockades reveal that there is a problem of much bigger proportions: the true compatibility of Indigenous systems of law in relation to Canadian constitutional law.  That is the real issue on which the blockades shed light.

I am not an expert on the Wet’suwet’en system of law, but Indigenous peoples may make the claim that Canadian court orders do not apply to them, because they are a sovereign nation. It is true that the Supreme Court of Canada has recognized, in the context of Canadian-Aboriginal law, that Indigenous peoples have pre-existing systems of law and governance that predated conquest. And it has been widely recognized, as Chief Justice McLachlin once said, that settlers committed “cultural genocide” against Indigenous peoples. All of this provides necessary context to the acts of the blockaders.

But, because of the failure of the Charlottetown Accord, Indigenous peoples do not have inherent jurisdiction recognized in the Canadian Constitution. That Accord would have recognized the inherent nature of Indigenous self-government, and made it so that the right to self-government is not contingent on negotiations. Indeed, the right to self-government would have included the right to “develop and maintain and strengthen their relationship with their lands, waters and environment.” This is a fundamental difference from the status quo. Currently, Indigenous rights  must be proven in court to be recognized. The judicial system is thus the locus of Indigenous rights, under s.35 of the Constitution Act, 1982. But inherent jurisdiction, recognized as a constitutional matter, would mean that Indigenous peoples have always had a constitutional basis or jurisdiction to act over matters within their remit. This turns the matter into one of jurisdiction. Inherent jurisdiction may mean that Canadian courts have jurisdiction to issue court orders, but the analysis would be different; instead of proving a “right”, Indigenous peoples would have a recognition of their jurisdiction, and the analysis would be akin to a federalism analysis. As a matter of constitutional amendment, this would put Indigenous systems of law on the same playing field as Canadian law, turning disputes over rights into disputes over jurisdiction. We should encourage our political actors to solve the disputes between the Canadian government and Indigenous groups through constitutional and political means, not only to provide clarity to these sorts of disputes, but to recognize the legal fact of existing Indigenous systems of government.

Questions regarding proof of Indigenous rights and title are currently difficult to resolve under the status quo of s.35 litigation. This is because courts are ill-suited to deal with the essentially political and jurisdictional task of recognizing distincitve orders of government and the lands on which they sit. Questions of proof are subject to years of litigation in court, putting dire pressures on Indigenous groups and government resources. One only need look at the Tsil’qhotin litigation for proof-positive of this point.

Additionally, this solution is not anathema to the Rule of Law. As the Court noted in the Quebec Secession Reference, constitutionalism and the Rule of Law are closely related principles. Once the Constitution recognizes distinctive Indigenous self-government, it becomes a matter of constitutional law, similar to the jurisdiction of the provinces represented in s.92 of the Constitution Act, 1867.

Some people may view this solution as a pipe dream. It is only so because our politicians lack moral courage. But in terms of the legal analysis, Canadian courts have the tools to manage conflicts of law and jurisdictional wrangling. Our federalism has been built on such wrangling for over 150 years, with provinces and federal government vying for power based on their constitutionally-delegated powers. Courts have developed the tools to manage jurisdictional disputes. Those same tools could be applied in this context as well. And of course, there are nuances to be worked out with this solution, as well. While Constitutions can set frameworks for government and provide rules for interjurisdictional disputes, land and resources will continue to be hot button issues subject to negotiations againt the backdrop of constitutional guarantees.

But, for the present moment, courts will need to exist and be respected. An existing system of Indigenous law, without more, cannot justify the disobeying of a court order simply by virtue of its existence. For now, so long as Indigenous peoples fall under the jurisdiction of Canadian courts, the blockades cannot stand as a matter of the Rule of Law. But this does not mean that Canadians, and Canadian leaders, should not bear the onus to complicate our idea of the Rule of Law. We should be looking to recognize inherent Indigenous jurisdiction over matters as an analogue of our own Rule of Law, just as we do in the context of federalism.

The bottom line: the blockades, under any conception of the Rule of Law, cannot stand in the face of a court order. But the blockades do illustrate a larger issue. As I have written before, Canadian understandings of the Rule of Law have to evolve to take account of Indigenous law. Surely, given our federal structure, this is a possibility.

Vavilov and the “Culture of Justification”

(Alyn) James Johnson

In Canada (Minister of Citizenship and Immigration) v. Vavilov (2019 SCC 65), the Supreme Court of Canada strongly endorses a “culture of justification” (at paras. 2, 14).  This concept, which has rarely been mentioned let alone employed by a Canadian court in the past (a CanLII search reveals only the concurring judgment of Justices LeBel and Deschamps in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63), contains two main propositions.  The first proposition is that all exercises of public power must be justified by written reasons.  The second proposition looks to the effects that a reasons-giving requirement can have on institutional configurations and posits that judicial control over interpretations of the law should be loosened in favour of a more decentred and democratized approach.

These propositions, and the concept of the culture of justification itself, are closely associated with the work of David Dyzenhaus (see, for example, “The Politics of Deference: Judicial Review and Democracy”; and “Constituting the Rule of Law: Fundamental Values in Administrative Law”).  The culture of justification has also been stressed extra-judicially by the former Chief Justice of Canada, Beverley McLachlin.  In a 1998 paper, Justice McLachlin (as she then was) states that “justification [is] a precondition to the legitimate exercise of public power,” and citing Dyzenhaus, she proclaims that a culture of justification is “the definitive marker of a mature Rule of Law” (“The Roles of Administrative Tribunals and Courts in Maintaining the Rule of Law” (1998), 12 C.J.A.L.P. 171 at 174).  The institutional contours of this “mature Rule of Law” are “pluralist,” and are outlined by Justice McLachlin as follows:

The effect of a culture of justification extends far beyond the proposition that institutions must justify the decisions they make in terms of rationality and fairness.  Indeed, once a culture of justification is recognized, it affects the relationships among institutions of the state almost as much as it affects the relationship between those institutions and the citizens living under their rules.  I will develop this idea more as I continue my remarks but, briefly, I believe that one of the most intriguing aspects of the new Rule of Law is that it makes it possible for institutions other than courts to play key roles in maintaining it.  It opens the door to the idea that courts do not necessarily have a monopoly on the values of reason or fairness.  Other social institutions may indeed be capable of justifying their powers to citizens and, in fact, citizens may well see these exercises of authority as legitimate [emphasis in original] (at 174-175, 185).

In Vavilov, this vision of a democratized and decentred approach to the Rule of Law is directly echoed by Justices Abella and Karakatsanis in their concurring reasons:

The rule of law is not the rule of courts.  A pluralist conception of the rule of law recognizes that courts are not the exclusive guardians of law, and that others in the justice arena have shared responsibility for its development, including administrative decision-makers.  Dunsmuir embraced this more inclusive view of the rule of law by acknowledging that the “court-centric conception of the rule of law” had to be “reined in by acknowledging that the courts do not have a monopoly on deciding all questions of law” (at para. 241).

What is somewhat odd, however, is that while the concurring Justices endorse the institutional configurations of a culture of justification, they expressly reject the primary move made by the seven-member majority of the Court towards requiring that exercises of public power be justified through written reasons.  The majority Justices announce that reasons are “the primary mechanism by which administrative decision makers show that their decisions are reasonable” (at para. 81), and they go on to state that

Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision maker to those to whom the decision applies.  While some outcomes may be so at odds with the legal and factual context that they could never be supported by intelligible and rational reasoning, an otherwise reasonable outcome also cannot stand if it was reached on an improper basis (at para. 86).

While the Court stops short of imposing an across the board reasons requirement as a matter of substantive review here (I return to this point below), the statement that deficient reasons can themselves provide a basis to quash a decision is of the highest importance to a culture of justification.  A reasoned basis for a decision, it would appear, is just as important as an outcome.  On this point, Vavilov can be said to institutionalize Delta Air Lines Inc. v. Lukács (2018 SCC 2), in which six members of the Court remitted an agency’s decision for reconsideration on the basis of a flawed process of reasoning.  Delta is cited six times in Vavilov, and all of the members of the Delta majority are part of the Vavilov majority, with the exception of Chief Justice McLachlin, who retired in the interim.  In both decisions, the Court steps away from the prior governing authority of Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) (2011 SCC 62), which provided that “the ‘adequacy’ of reasons is [not] a stand-alone basis for quashing a decision” (at para. 14). 

Justices Abella and Karakatsanis dissented in Delta, and in their strongly worded concurring reasons in Vavilov they express a continuing commitment to the Newfoundland Nurses position that deficient reasons cannot be used on their own to quash a decision (at para. 304).  Yet while they claim that their “approach puts substance over form in situations where the basis for a decision by a specialized administrative actor is evident on the record, but not clearly expressed in written reasons,” the concurring Justices do not appear to acknowledge adequately that in a culture of justification reasons are by definition a matter of “substance,” and not a simple “form” carrying an outcome.  As noted by the majority in Vavilov, reasons play a critical role in justifying a decision, particularly to a party on the losing end, and furthermore, the “discipline of reasons” is itself integral to achieving acceptable outcomes (at paras. 79-80).    

The concurring Justices’ endorsement of a “pluralist conception of the rule of law” is ultimately undermined by their refusal to the accept the bedrock culture of justification proposition that outcomes should be supported by coherent reasons.  The project of democratizing and decentering the interpretation of law, enjoined by advocates of the administrative state, requires that the “discipline of reasons” be broadly instituted.  One could say that a cogent reasons requirement is the price of admission to an institutionally pluralist administrative state.  The position mapped out by Justices Abella and Karakatsanis is troubling in that it overloads power onto executive decision-makers and does not exact enough in return in the form of reasoned justification. 

While the Vavilov majority does not expressly endorse a “pluralist” approach to the Rule of Law in the same terms as the concurring Justices, the Court’s institutionalization of a “reasons first” methodology of reasonableness analysis arguably goes a long way towards democratizing decision-making:

A principled approach to reasonableness review is one which puts those reasons first.  A reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with “respectful attention” and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion (at para. 84).

A “reasons first” methodology is of course consistent with the legislature’s decision to delegate power to a body other than a court, but it is also an acknowledgment by a reviewing court that a decision-maker that has submitted itself to the “discipline of reasons” should be accorded deference and respect. 

A “reasons first” methodology and the DeltaVavilov requirement that reasons themselves are reviewable for their cogency together establish a truly “pluralist” approach to the Rule of Law in a culture of justification.  Affected citizens are entitled to a carefully justified explanation of why an executive official made a particular decision.  Executive decision-makers, receiving their lawful authority from statute, are entitled to a space in which they can justify their conclusions.  Reviewing courts, finally, are entitled to assert the power to remedy any shortcomings in reasoned justification by quashing a decision.

A final point.  The question of exactly “Where reasons for a decision are required” needs more attention.  An across the board reasons stipulation may not be feasible given the enormous variety of decisions made by executive officials.  At present, however, it appears that a procedural fairness analysis will be needed to determine if reasons are required for the purposes of substantive review (unless reasons are mandated by statute).  Revisiting and possibly tightening up the existing procedural fairness test, and clarifying its interrelation with substantive review, would be desirable. 

Johnson on Vavilov

Announcing a guest post on the “culture of justification” in the Supreme Court’s decision in Vavilov

This is a quick announcement that James M. Johnson will soon be publishing a guest post discussing the notion of a “culture of justification” in administrative law as it is treated in the Supreme Court’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65. Dr. Johnson holds a PhD from Queen’s University, having written a thesis on nondelegation. He is currently the Principal of Public Law Solutions, a research firm in Toronto. I am looking forward to his post.

L’article 28 de la Charte canadienne des droits et libertés: des dispositions interprétatives sujettes à interprétation

Alors que la loi québécoise sur la « laïcité de l’État », qui contient une disposition (art. 34) dite « type » de dérogation à la Charte canadienne des droits et libertés, voit sa constitutionnalité être contestée devant la Cour supérieure, l’article 28 de ladite Charte, aux dispositions duquel l’article 33 ne permet pas la dérogation, fait l’objet d’un débat entre constitutionnalistes et praticiens. La juge en chef du Québec aurait même soulevé d’office cette disposition dans le cadre d’une conférence de gestion d’une procédure d’appel, somme toute plutôt exceptionnelle, d’une décision disposant d’une demande de mesure interlocutoire, en l’occurrence une demande de sursis d’application de la loi contestée, demande qui fut refusée.

À la différence de son article premier, qui en en posant les conditions admet la restriction de tous les droits garantis par la Charte canadienne, l’article 33 ne permet de déroger qu’à certains d’entre eux.

Encore là, soutiennent des auteurs, si l’article 33 permet de déroger à l’article 15 relatif au droit à l’égalité, en revanche il ne permettrait pas de déroger à l’article 28, qui prévoit que, « [i]ndépendamment des autres dispositions de la présente charte, les droits et libertés qui y sont mentionnés sont garantis également aux personnes des deux sexes », de sorte que la dérogation au droit à l’égalité des sexes serait impossible. Suivant un tel raisonnement, la dérogation, par une loi, à l’article 15 de la Charte canadienne ne permettrait pas la production d’effets discriminatoires asymétriquement accrus sur les femmes, effets qui rendraient possible un contrôle de la loi en vertu de l’article 28.

Cette thèse est notamment défendue par la professeure Kerri Froc[1]. Son argument principal est le suivant. Une version antérieure du texte finalement adopté de l’article 28 précisait que celui-ci devait s’appliquer indépendamment des autres dispositions de la présente charte, « except section 33 », et une version antérieure de l’article 33 tel qu’il fut finalement adopté prévoyait la dérogation à l’article 28 « in its application to discrimination based on sex referred to in section 15 »[2]. En d’autres termes, après avoir envisagé assujettir explicitement l’article 28 à l’article 33, on y a renoncé, et certains participants de la négociation ayant mené au résultat final ont affirmé que cela « meant that sexual equality in section 15 could not be overridden »[3]. Or, si de tels témoignages sont certes pertinents, le sens de la loi, constitutionnelle ou non, ne saurait y être réduit, de sorte que leur prise en considération n’est pas à elle seule déterminante. Il y a souvent décalage entre ce que des personnes qui ont contribué à l’élaboration ou l’adoption d’un texte ont voulu faire et ce que l’ensemble de celles qui ont adopté ce texte ont ainsi fait[4]. Aussi, après s’être appuyée sur un argument « originaliste », et après avoir fait d’un « hybrid originalism/new purposivism » – qui à mon sens n’est pas sans rappeler le « living originalism » de Jack Balkin[5] – la méthode qui préside à sa thèse de doctorat[6], Kerri Froc affirme-t-elle que « the written text of the Charter can and should have primacy »[7]. Un texte absolument clair, ne laissant guère de place à interprétation, doit bien entendu l’emporter, mais dans les faits la chose est rare en droit constitutionnel, comme le prouve dans le cas qui nous occupe (celui de l’article 28 de la Charte canadienne) l’existence même de la thèse de doctorat de ma consœur. C’est pourquoi l’interprétation constitutionnelle consiste à soupeser de nombreux facteurs : le texte de la disposition en cause, l’intention du constituant, l’économie des dispositions de la loi constitutionnelle, la jurisprudence, les principes qui se dégagent de l’ensemble du système, le droit international, etc.

La professeure Froc me semble bien admettre que la jurisprudence actuelle ne peut appuyer, du moins pas positivement, son interprétation de l’article 28 de la Charte canadienne[8]. À mon sens comme à celui de Me Asher Honickman[9], l’article 28 se présente effectivement plutôt comme une disposition interprétative des droits par ailleurs garantis pour être énoncés dans la Charte canadienne, non pas comme une disposition conférant un droit à l’égalité des sexes séparé de l’article 15, qui comprend expressément ce droit. Il figure parmi d’autres dispositions interprétatives dans une section de la Charte qui est intitulée « Dispositions générales ».

Comme le raconte un autre participant à l’élaboration du texte de la Charte canadienne, l’article 28 fut ajouté afin de contrer certains effets des articles interprétatifs 25 et 27 qu’appréhendaient des groupes féministes[10]. L’article 25 – article à mon sens interprétatif qui est lui aussi sujet à diverses interprétations[11] – prévoit que « [l]e fait que la présente charte garantit certains droits et libertés ne porte pas atteinte aux droits ou libertés — ancestraux, issus de traités ou autres — des peuples autochtones du Canada […] ». Quant à l’article 27, il veut disposer que « [t]oute interprétation de la présente charte doit concorder avec l’objectif de promouvoir le maintien et la valorisation du patrimoine multiculturel des Canadiens ». L’objectif poursuivi par l’article 28 est donc vraisemblablement d’exclure toute éventuelle interprétation multiculturaliste des droits énoncés par ailleurs dans la charte ou de leur relation aux droits constitutionnels collectifs reconnus aux peuples autochtones par la Partie II de la Loi constitutionnelle de 1982 qui aurait pour effet de limiter le bénéfice de leur protection aux seuls hommes. Cela ne vaut que tant que le ou les droits en question n’ont pas été suspendus à l’égard de dispositions législatives données, au moyen de dispositions dérogatoires adoptées en vertu de l’article 33.

Que veut alors dire le fait que le constituant ait pris soin de retrancher d’une version antérieure du texte respectif des articles 28 et 33 des mots qui auraient assujetti l’article 28 à la compétence prévue à l’article 33? En d’autres termes, que veut bien vouloir dire le fait, incontestable, que l’article 33 ne permet pas de « déroger » à l’article 28? Cela veut simplement dire que des dispositions dérogatoires adoptées en vertu de l’article 33 ne peuvent pas prévoir que des dispositions législatives données ne seront assujetties au contrôle de l’une ou plusieurs des dispositions des articles 2 et 7 à 15 de la Charte canadienne que dans la mesure où ces dispositions sont porteuses de droits en faveur des hommes. Autrement dit, l’article 33 permet de déroger à des droits énoncés dans la Charte, mais non aux principes d’interprétation qui y sont posés. L’article 28 n’étant pas porteur d’un droit séparé à l’égalité des sexes, il est possible aux législateurs de déroger à ce droit en tant que composante du droit à l’égalité garanti par l’article 15.

La tension entre la thèse de la professeure Froc et la mienne se fait jour sur la page que Chartepédia, une ressource qui a été mise en ligne par le ministère fédéral de la Justice, consacre à l’article 28. D’une part, on y lit que :

L’article 28 est souvent mentionné comme un article connexe de l’article 15 dans les affaires dans lesquelles on allègue des questions de discrimination fondée sur le sexe (Sawridge Band c. Canada, 2000 CanLII 15449; R. c. Park[1995] 2 RCS 836Symes c. Canada[1993] 4 RCS 695). Toutefois, il ne crée pas un régime de droits à l’égalité séparé de celui prévu à l’article 15 de la Charte. Il a plutôt une fonction d’interprétation, de confirmation et d’appoint.

De l’autre, on peut y lire que :

Considéré à la lumière de l’article 33, l’article 28 peut vouloir dire que, même si une législature ou un parlement adopte une loi qui permet d’abroger ou de violer l’article 2 ou les articles 7 à 15 de la Charte, l’institution ne pourra le faire si les gens s’en trouvent disproportionnellement touchés en raison de leur sexe.

La première affirmation s’appuie sur la jurisprudence, la seconde est davantage spéculative.

Cela dit, un argument supplémentaire dont il me semble que ma consœur de l’University of New Brunswick aurait pu l’exploiter plus systématiquement est tiré du droit international. Mais, à l’instar de celui fondé sur les intentions originelles, un tel argument ne peut avoir qu’un poids relatif. La thèse selon laquelle les tribunaux doivent, dans la mesure du raisonnablement possible, interpréter le droit constitutionnel, et notamment la Charte canadienne, à la lumière du droit international – et même des traités non signés par le Canada – se dégage entre autres des arrêts R. c. Hape[12]Ontario c. Fraser[13] et Thibodeau c. Air Canada[14]. Jusqu’ici, cette théorie a été peu plaidée et a produit peu de résultats. La présomption qu’elle entend véhiculer est d’ailleurs réfragable. Il n’empêche que, outre la Convention sur l’élimination de toutes les formes de discrimination à l’égard des femmes par exemple, l’article 28 de la Charte canadienne s’inspire de l’article 4.1 du Pacte international relatif aux droits civils et politiques, aux termes duquel les parties (dont le Canada) stipulent que :

Dans le cas où un danger public exceptionnel menace l’existence de la nation et est proclamé par un acte officiel, les États parties au présent Pacte peuvent prendre, dans la stricte mesure où la situation l’exige, des mesures dérogeant aux obligations prévues dans le présent Pacte, sous réserve que ces mesures ne soient pas incompatibles avec les autres obligations que leur impose le droit international et qu’elles n’entraînent pas une discrimination fondée uniquement sur la race, la couleur, le sexe, la langue, la religion ou l’origine sociale.

Tout en donnant son juste poids à l’argument, je demeure d’avis, sur la base de l’économie des dispositions de la Charte canadienne des droits et libertés, que le constituant canadien de 1982 n’est pas allé aussi loin. Il a plutôt fait de l’égalité des sexes une composante d’un droit général à l’égalité comme protection contre la discrimination auquel il a autorisé le législateur ordinaire à déroger, pour ne faire du principe de l’égalité des sexes dans l’exercice des droits fondamentaux qu’un principe d’interprétation (même s’il est impossible d’y déroger).

[1] Kerry Froc, « Shouting into the Constitutional Void: Section 28 and Bill 21 », Constitutional Forum constitutionnel, vol. 28, no 4, 2019, pp. 19-22. Voir aussi The Untapped Power of Section 28 of the Canadian Charter of Rights and Freedoms, PhD Thesis, Queen’s University Faculty of Law, 2015 (non publiée).

[2] Anne F. Bayefsky, Canada’s Constitution Act 1982 & Amendments: A Documentary History, McGraw-Hill Ryerson, 1989, vol. 2, pp. 911-912.

[3] Roy Romanov, John Whyte et Howard Leeson, Canada… Notwithstanding: The Making of the Constitution 1976-1982, Carswell, 1984, p. 213.

[4] Ronald M. Dworkin, « The Moral Reading of the Constitution », New York Review of Books, 21 mars 1996.

[5] Jack M. Balkin, Living Originalism, Harvard University Press, 2014.

[6] Kerry Froc, The Untapped Power of Section 28 of the Canadian Charter of Rights and Freedoms, PhD Thesis, Queen’s University Faculty of Law, 2015 (non publiée), pp. 22-102.

[7] Kerry Froc, « Shouting into the Constitutional Void: Section 28 and Bill 21 », Constitutional Forum constitutionnel, vol. 28, no 4, 2019, p. 21.

[8] Kerry Froc, The Untapped Power of Section 28 of the Canadian Charter of Rights and Freedoms, PhD Thesis, Queen’s University Faculty of Law, 2015 (non publiée), pp. 257-374.

[9] Asher Honickman, « Deconstructing Section 28 », Advocates for the Rule of Law, 29 juin 2019, en ligne : http://www.ruleoflaw.ca/deconstructing-section-28/

[10] B.L. Strayer, « In the Beginning…: The Origins of Section 15 of the Charter », Journal of Law & Equality, vol. 5, no. 1, 2006, p. 13-24.

[11] Voir R. c. Kapp, [2008] 2 RCS 483.

[12] R. c. Hape, [2007] 2 RCS 292.

[13] Ontario (Procureur général) c. Fraser, [2011] 2 RCS 3.

[14] Thibodeau c. Air Canada, [2014] 3 RCS 340.

St-Hilaire on Section 28

This is a quick note to announce that Maxime St-Hilaire will shortly be publishing a guest post on section 28 of the Canadian Charter of Rights and Freedoms and its relationship with the Charter’s “notwithstanding clause”. We previously published a post on this subject by Kerri Froc, which prompted a response by Asher Honickman over at Advocates for the Rule of Law. I am pleased that Professor St-Hilaire, a longtime friend of this blog, is also contributing to this discussion.

Kinsinger on Religious Neutrality

Announcing a guest post by Kristopher Kinsinger

This is a quick note to announce a forthcoming guest post by Kristopher Kinsinger discussing his article on “Inclusive Religious Neutrality: Rearticulating the Relationship Between Sections 2(a) and 15 of the Charter“. Religious neutrality is an important issue in the broader freedom of religion doctrine under the Canadian Charter of Rights and Freedoms, as the recent decision of the Supreme Court of British Columbia in Servatius v Alberni School District No. 70, 2020 BCSC 15, once again reminds us. Mr. Kinsinger (currently an articling student with Miller Thomson LLP) brings an interesting perspective to the discussion of this principle ― different from the one that shapes my own posts on the subject ―, and I am looking forward to reading him.

Vavilov’s Reasonableness Standard: A Legal Hard-Look Review

In my first post on Vavilov, I celebrated the Court for finally bringing some sense to the Canadian law of judicial review. Particularly, I focused on three issues relevant to determining the standard of review: the banishment of jurisdictional questions, the introduction of statutory rights of appeal as a category of correctness review, and the sidelining of expertise from the task of determining the standard of review. I did not address what I consider the real meat of Vavilov: the application of the new, robust [13], reasonableness standard.

As I will set out here, this is the strength of Vavilov because it creates a real legal standard for deference that does not permit decision-makers to “drift” beyond statutory boundaries. It forces reasoning that is explicitly tied to the enabling statute, rather than extraneous “policy” factors. This is a form of legal “hard-look” review that will not enable decision-makers much room to justify outcomes that are inconsistent with the enabling statute or otherwise do not engage with core interpretive elements. Indeed, the enabling statute is “likely to be the most salient aspect of the legal context relevant to a particular decision” [108]. This overarching theory is employed in what the Court mandates for decision-makers, creating a framework, at least on questions of law, that looks something like this:

  • Decision-makers must render a decision that is consistent with the text, context, and purpose of the statute [120] (a focus on outcome)
  • Decision-makers must engage with the most pertinent aspects of text, context, and purpose, with only limited room for omissions where those omissions are “minor” [122], while writing reasons that justify these interpretive choices [84], showing that a decision-maker was “alive to these essential elements” [120].
  • Courts will no longer cooper up defective interpretations of law by ginning up their own reasons for decision [96].

Overall, these three restraints on administrative excess ensure that the statute—as interpreted by the decision-maker, through reasons—is the starting point for all administrative review. This does not abdicate a court’s function; fundamentally, the court will determine whether the reasons evince an engagement with the statutory context in a way that is justifiable and justified [86].

Take first the requirement that a decision-maker render a decision consistent with the text, context, and purpose of the statute. The focus here has two dimensions that make it ideal for the conduct of judicial review as a matter of appreciating statutory boundaries. First, the “reasons first” [84] methodology of the Court protects against what I call the real legacy of Dunsmuir: disguised correctness review. The evil of disguised correctness review was not that it unduly impacted administrative prerogative; it is that it potentially limited the scope of delegated power set by Parliament. The potential for disguised correctness review is now, at the very least, curtailed. Courts have to start with the reasoning of the decision-maker to determine whether it falls within the scope of the legislation [116]. That scope will sometimes be wide, sometimes be narrow, [110] but the administrative reasons, as they interpret the scope of the legislation, are the starting point.

What is to be avoided on this line of thinking is what Justices Abella and Martin did in the Canada Post decision. There, they largely reasoned from their own view of the statute at play, and used that reasoning to judge the decision-maker’s interpretation of the law. This seems odd, considering Justice Abella’s cries about deference in Vavilov itself. Nonetheless, this approach is not–and should not be–a majority approach.

But this is not the end of the inquiry. Ultimately, a court must review, and it will be the reviewing court’s decision as to whether the administrative decision-maker has made a decision that transgresses the scope of the statute. After all, “[i]t will, of course, be impossible for an administrative decision maker to justify a decision that strays beyond the limits set by the statutory language it is interpreting,” which justification is assessed “in the eyes of the reviewing court” [110]. Here, the court takes a meaningful role in determining whether the decision strayed beyond the scope of the legislation the decision maker is interpreting; the merits of a decision must be consistent with the text, context, and purpose of the provision [120]. Under this framework, then, courts have a meaningful role to play in implicitly determining the boundaries of statutory limits, in order to then determine whether the administrator’s interpretation can be justified by the legal constraints bearing on it. In other words, under Vavilov, the application of legal constraints is still a preserve of the courts.

Now, consider the requirement that a decision-maker must engage with the essential elements of statutory interpretation: the text, context, and purpose. Here, another balance is struck. On one hand, a decision-maker is not required to engage the formalistic tools of interpretation, at least in “every case” [119]. I take this to mean that decision-makers will not be required to apply ejusdem generis or noscitur a sociis, or other lawyerly lingo. But, it will be necessary for decision-makers to ensure that they do not miss the most salient aspects of text, context, and purpose—at least in some cases—lest their decisions be unreasonable [122]. Their reasons must evince that they weighed the interpretive tools of text, context, and purpose, determining in a given case which is dominant [120].

Ultimately, this is a good development. Administrative decision-makers do not have to dress up their reasons in legal garb, but if they are to be true participants in the legal system—and if they are truly joint partners in upholding the Rule of Law—their reasons must be cognizable to the rest of the legal system. Reasons that are written exclusively in the vernacular of a particular industry or policy area do no good to others seeking to determine whether the decision is consistent with particular statutory limitations. In this sense, while we cannot expect decision-makers to know semantic canons of interpretation, they must justify their decisions so that they are rendered in the language of the most basic tools of interpretation: text, context, and purpose. This is the language of law, and decision-makers, if they are to truly be partners in the enterprise, must speak it to some degree.

In particular, reasons serve a transmitting function on this account. They are a means to and end: the end of judicial review. Their purpose is ensure that courts can adequately assess whether decision-makers have justified their decisions in relation to statutory limits. In this way, the reasons requirement instantiated in Vavilov is ultimately tied back to the enabling statute, the fundamental basis of all administrative law.

Finally, and connected to the above, the importance of reasons means that courts cannot gin up reasons for decision when they are absent on a particular essential element [96]. Indeed:

Where, even if reasons given by an administrative decision maker for a decision are read with sensitivity to the institutional setting and in light of the record, they contain a fundamental gap or reveal that the decision is based on an unreasonable chain of analysis, it is not ordinarily appropriate for the reviewing court to fashion its own reasons in order to buttress the administrative decision.

Why shouldn’t this be permissible? As Justice Stratas noted pre-Vavilov in Bonnybrook (at para 93):

But faced with a silence whose meaning cannot be understood through legitimate interpretation, who am I to grab the Minister’s pen and “supplement” her reasons? Why should I, as a neutral judge, be conscripted into the service of the Minister and discharge her responsibility to write reasons? Even if I am forced to serve the Minister in that way, who am I to guess what the Minister’s reasoning was, fantasize about what might have entered the Minister’s head or, worse, make my thoughts the Minister’s thoughts? And why should I be forced to cooper up the Minister’s position, one that, for all I know, might have been prompted by inadequate, faulty or non-existent information and analysis?

Bonnybrook’s understanding is basically now the law in Vavilov. When administrative decision-makers are delegated power, they are delegated that power with the understanding that they will make decisions at first instance, not courts. If these administrative decision-makers fail to live up to that delegated mandate, that is no fault of the courts, and so it is not the job of the courts to make the decision for the decision-maker. It is, however, the job of the courts to render the decision unreasonable. This is particularly the case where there is a missing part of the decision on a core interpretive element, under which the result of the decision would be different (Vavilov, at para 122).

All together, what Vavilov has created is a new reasonableness standard that is tightly focused statutory limits, using statutory interpretation as a tool for discerning those limits. Of course, there are other “constraints” on decision-making that matter (see Vavilov, para 106) —but where we are talking about legal interpretation, legal constraints will be the most salient element of the decision-maker’s reasoning. Ultimately, this is a positive step forward, since all administrative law is a function of statutory interpretation and analysis.

Much Ado About Context: A Note in Anticipation of Vavilov et al

A short post today about the role of “context” in administrative law. Many speak about “context” in the law of judicial review as if it is some inherent element of the law. In Khosa, Justice Binnie, for example, noted that in applying the reasonableness standard of review, the standard “takes its colour from the context” (Khosa, at para 59). But nowhere did Justice Binnie describe what context matters, or how it matters. In Dunsmuir itself, Bastarache and LeBel JJ said that “[t]he analysis must be contextual in applying the standard of review (Dunsmuir, at para 46). They said this in the context of discussing the “pragmatic and functional” factors that still, nominally, exist under the Dunsmuir framework. Whatever these quotes actually mean, the role of context in the law of judicial review is a distinct school of thought worthy of its own blog post (see Dean R Knight’s Vigilance and Restraint in the Common Law of Judicial Review for more discussion of contextual approaches to the law of judicial review).

Nonetheless, I am always puzzled by generic calls to “context.” Floating on a sea of “context” does nothing to guide litigants or judges in applying the law. What is required are simple, clear rules that are attuned to the fact that decision-makers arise in different statutory contexts, that can guide the parties and judges involved in applications for judicial review (for a contrary view about the search for simplicity in the law of judicial review, see Justice Cromwell’s “What I Think I Have Learned About Administrative Law” in the CJALP).

How can one have simple rules that adequately capture the vast array of decision-makers? This is, I think, the core dilemma facing the Supreme Court in the Vavilov case and perhaps in the law of judicial review more generally. For me, the key in enshrining the role of context is to look to the varied statutory contexts in which administrative decisions are made. Clearly, when speaking about context, we cannot mean that the standard of review analysis must encapsulate how decision-makers empirically act on a day-to-day basis. That is, courts cannot afford more or less deference based on how administrators actually act in the context of their day-to-day jobs. This would be an information-intensive exercise that judicial review courts are, obviously, ill-equipped to handle. So we need some proxy for context that takes into account the varying ways in which administrative decision-makers exercise their powers.

Of course, administrative decision-makers live in a world where their powers are “themselves confined” by statutes (Dunsmuir, at para 29). This means that administrative powers are delegated in the context of broader statutory schemes that set out when, how, and under what circumstances delegated powers are to be exercised. For example, are administrative decisions covered by a strong privative clause, impliedly signalling that Parliament wanted to limit judicial oversight? This is a sign, perhaps, that deference should be afforded. Has Parliament set out a list of factors that a decision-maker must consider (see Farwaha, at para 91)? This means that the decision-maker must consider these factors, not ones extraneous to the legislation—all things equal, this is a sign that the court must only consider whether the decision-maker considered these factors. Every statute is different, and each statute will affect the way in which courts review particular exercises of delegated power.

Practically, this means that what we require are meta-rules for courts to apply in analyzing statutes in service of deciding and applying on a standard of review—in other words, we need rules for deciding what statutory context matters. Luckily, we have those meta-rules: the rules of statutory interpretation. The Supreme Court has recognized that the principles of statutory interpretation are key in discerning the scope–and therefore the intensity of review–of delegated power (Bibeault, at para 120; also recognizing the difficulty of the task). And this is the key: if statutory context is the best evidence we have of what the legislature meant when it delegated power to a decision-maker, then the rules of statutory interpretation are all we need to discern how much deference is owed a particular decision-maker.

What is to be avoided, on this line of thought, is the Supreme Court’s generic approach that institutes a rule that clearly ignores statutory context. The presumption of deference on home statute interpretation increasingly applies without viewing any statutory context (see my post on CHRC, for example). And as I wrote earlier, the Court rarely pays attention to implicit signals from the legislature, through statutory rights of appeal and other legislative mechanisms (though the Court did so admirably in Tervita and Rogers). This seems contrary to the whole search for legislative “intent” that characterizes this area of the law.

If context is truly to mean context, then the Supreme Court should pay attention to the varied statutory contexts in which administrative decision-making occurs, by giving effect to the legislature’s meaning.